These were two conjoined Supreme Court appeals concerning the approach to determining whether a non-EU citizen carer of a dependant EU citizen (usually, but not always, a non-EU parent of an EU citizen child) has a ‘Zambrano’ right of residence under EU law in their host EU member state – in particular following the CJEU’s recent decision in Case C-133/15 Chavez – Vilchez. The judgment is available at the following link.
Mr Patel’s appeal was dismissed and Mr Shah’s appeal was allowed, the Court fundamentally concluding that each case turned on its facts. The Court rejected the submission that Chavez-Vilchez had diminished the requirement for compulsion to leave the EU; therefore, Mr Patel’s appeal failed because the First-tier Tribunal (“FTT”) had found that his elderly parents would not leave the UK if Mr Patel were forced to leave. Mr Shah’s appeal was successful because the FTT had found that the compulsion requirement was met on the facts of his case; the Court held that the Court of Appeal had been wrong to treat as determinative “what could happen to Mr and Mrs Shah’s son if the father left the UK, rather than what the FTT had found would happen … “ (para. 32).
Richard Drabble QC and Charles Banner QC appeared for the AIRE Centre (with Bojana Asanovic of Lamb Building), who intervened by way of written and oral submissions, instructed by Freshfields Bruckhaus Deringer LLP.